PEOPLE OF MI V KARIM DAVON AHMAD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 14, 2010
Plaintiff-Appellee,
v
No. 292940
Ingham Circuit Court
LC No. 08-001318-FH
KARIM DAVON AHMAD,
Defendant-Appellant.
Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.
PER CURIAM.
A jury convicted defendant of assault with intent to do great bodily harm less than
murder, MCL 750.84, and assault with a dangerous weapon (felonious assault), MCL 750.82.
Defendant was sentenced as an habitual offender, second offense, MCL 769.10, to concurrent
prison terms of 120 to 180 months on the assault with intent to do great bodily harm conviction
and 30 to 72 months on felonious assault conviction. Defendant appeals as of right. We affirm
defendant’s convictions, but remand for resentencing.
Defendant’s convictions arise from a domestic violence incident that occurred on October
27, 2008. The prosecution maintained that the victim had been strangled and had received
numerous blows with a hammer during the attack. At trial, the victim denied that defendant had
inflicted her injuries and instead identified a previously undisclosed third person as her attacker.
Nevertheless, the prosecution introduced testimony from the officer who responded to the home
that the victim had identified defendant as her attacker at that time. In addition, evidence related
to four other domestic violence incidents involving the victim and defendant was introduced at
trial pursuant to MCL 768.27b and MCL 768.27c.
Defendant argues that there was insufficient evidence presented to sustain his
convictions. We disagree.
In reviewing a sufficiency of the evidence claim, we apply a de novo standard. People v
Hawkins, 245 Mich App 439, 457; 628 NW2d 105 (2001). Due process prohibits a criminal
conviction unless the prosecution establishes guilt of the essential elements of a criminal charge
beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723; 597 NW2d 73 (1999).
Circumstantial evidence and the reasonable inferences it engenders are sufficient to support a
conviction, provided the prosecution meets its burden of proof. People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000). In addition, the prosecution is not required to disprove all
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innocent theories when a case is based on circumstantial evidence. Id. A reviewing court must
examine the evidence in a light most favorable to the prosecution, and determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond
reasonable doubt. Hawkins, 245 Mich App at 457. All conflicts in the evidence must be
resolved in the favor of the prosecution. People v Terry, 224 Mich App 447, 452; 569 NW2d
641 (1997).
The essential elements that must be established beyond a reasonable doubt to sustain a
conviction for assault with intent to do great bodily harm less than murder are: “(1) an attempt or
threat with force or violence to do corporal harm to another (an assault), and (2) an intent to do
great bodily harm less than murder.” People v Parcha, 227 Mich App 236, 239; 575 NW2d 316
(1997). The second element requires proof of specific intent, which can be inferred from the
defendant’s conduct. Id. The essential elements that must be established beyond a reasonable
doubt to sustain a conviction for felonious assault are: “(1) an assault, (2) with a dangerous
weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of
immediate battery.” People v Chambers, 277 Mich App 1, 8, 742 NW2d 610 (2007) (quotation
omitted). Our Supreme Court has held that a hammer, as well as many other articles, constitutes
a dangerous weapon “if used or carried for the purpose of assault.” People v Vaines, 310 Mich
500, 504-505; 17 NW2d 729 (1945).
Here, the responding officer testified below that the victim reported being strangled and
struck with a hammer multiple times, including one blow to the head. In addition, medical
testimony and photographs of injuries consistent with the complained of injuries were introduced
at trial. Thus, this testimony was sufficient to establish each of the elements enumerated above.
To the extent that defendant argues that this hearsay testimony does not constitute competent
evidence, as discussed, infra, this testimony was admissible pursuant to MCL 768.27c. Taken as
a whole and viewed in a light most favorable to the prosecution, the evidence presented below
and the reasonable inferences stemming from that evidence were more than sufficient to support
defendant’s convictions. Hawkins, 245 Mich App at 457.
Defendant next challenges the constitutionality of MCL 768.27b, and specifically argues
that the statute violates separation of powers principles. We disagree.
This Court, in People v Schultz, 278 Mich App 776; 754 NW2d 925 (2008), already
addressed whether MCL 728.27b violates this constitutional separation of powers. The Court
determined that the statute “reflects a ‘policy decision that, in certain cases, juries should have
the opportunity to weigh a defendant's behavioral history and view the case's facts in the larger
context that the defendant's background affords.’” Id. at 779 (quoting People v Pattison, 276
Mich App 613, 620; 741 NW2d 558 (2007). The Schultz Court held that MCL 768.27b was
constitutional because it “is a substantive rule engendered by a policy choice, and it does not
interfere with our Supreme Court's constitutional authority to make rules that govern the
administration of the judiciary and its process.” Schultz, 278 Mich App at 779. This Court and
trial courts are bound by binding precedent established by the Supreme Court and this Court.
MCR 7.215(C)(2); People v Beasley, 239 Mich App 548, 556; 609 NW2d 581 (2000).
Defendant also argues he was denied a fair trial by the admission of inadmissible hearsay
evidence. We disagree.
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A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). An abuse of
discretion occurs when the trial court chooses an outcome that falls outside the permissible
principled range of outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2006).
Defendant specifically takes issue with the testimony of multiple law enforcement
officers concerning statements made by the victim at various times. Defendant’s discussion of
this issue fails to acknowledge, or even challenge the validity of, the statutory rule of evidence
allowing for the introduction of certain hearsay statements related to domestic violence incidents.
MCL 768.27c provides as follows:
(1) Evidence of a statement by a declarant is admissible if all of the following
apply:
(a) The statement purports to narrate, describe, or explain the infliction or threat
of physical injury upon the declarant.
(b) The action in which the evidence is offered under this section is an offense
involving domestic violence.
(c) The statement was made at or near the time of the infliction or threat of
physical injury. Evidence of a statement made more than 5 years before the filing
of the current action or proceeding is inadmissible under this section.
(d) The statement was made under circumstances that would indicate the
statement's trustworthiness.
(e) The statement was made to a law enforcement officer.
MCL 768.27c gives further guidance on the determination of trustworthiness for purposes
of this statute and states, as follows:
(2) For the purpose of subsection (1)(d), circumstances relevant to the issue of
trustworthiness include, but are not limited to, all of the following:
(a) Whether the statement was made in contemplation of pending or anticipated
litigation in which the declarant was interested.
(b) Whether the declarant has a bias or motive for fabricating the statement, and
the extent of any bias or motive.
(c) Whether the statement is corroborated by evidence other than statements that
are admissible only under this section.
Here, the victim’s statements to the responding officer that defendant had struck her
multiple times with a hammer and had choked her were supported by photographs depicting the
injuries and medical testimony that the injuries were consistent with the victim’s complaints.
Moreover, the officers’ testimony concerning the prior domestic violence incidents were likewise
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supported by photographic evidence. Thus, we conclude that the testimony of the law
enforcement officers with regard to the victim’s statements was admissible under the statute.
However, testimony by the victim’s neighbor with regard to statements the victim had
made to her about defendant hitting her in the head with the hammer or damaging the apartment
door was not admissible under MCL 768.27c because the neighbor is not a “law enforcement
officer.” Defendant also makes a persuasive argument that these statements were not admissible
under a hearsay exception. Even assuming that the trial court erroneously admitted the
neighbor’s testimony, any error was harmless beyond a reasonable doubt in light of the ample
competent evidence to support defendant’s convictions. MCL 769.27.
Defendant also challenges the introduction of testimony from a hospital nurse who
testified that she ordered the emergency room into lock-down mode when the victim was brought
in for treatment. Defendant specifically argues the evidence was purely inflammatory and not
probative of defendant’s guilt or innocence. We agree that the statement relating to ordering the
lock-down was not admissible as a statement related to medical treatment under MRE 803(4).
Nevertheless, as with the neighbor’s testimony, defendant is not entitled to reversal because such
error was harmless beyond a reasonable doubt.
Defendant next challenges the validity of his sentence. Defendant specifically argues that
the trial court misscored offense variable (OV) 7, which resulted in a disproportionate sentence.
We disagree.
An appellate court reviews a sentencing court’s decision for an abuse of discretion, and
must determine whether the record evidence adequately supports a particular score. People v
Wilson, 265 Mich App 386, 397; 695 NW2d 351. Questions of statutory interpretation are
reviewed de novo. People v Schaub, 254 Mich App 110, 114-115; 656 NW2d 824 (2000).
“A sentencing court may consider all record evidence before it when calculating the
guidelines, including, but not limited to, the contents of a presentence investigation report,
admissions made by a defendant during a plea proceeding, or testimony taken at a preliminary
examination or trial.” People v Ratkov (After Remand), 201 Mich App 123, 125; 505 NW2d 886
(1993), remanded 447 Mich 984 (1994). Scoring decisions for which there is any evidence in
support will be upheld. People v Hornsby, 251 Mich App 462, 468; 650 NW2d 700 (2002)
(quotation omitted).
OV 7 requires the assessment of 50 points when a victim has been treated with sadism,
torture, excessive brutality, or conduct designed to substantially increase fear or anxiety. MCL
777.37(1)(a). Defendant’s conduct toward complainant, including biting and choking her, as
well as inflicting numerous blows with a hammer to her head, back, and abdomen, constituted
excessive brutality. Therefore, there was evidence to support the scoring decision. Hornsby, 251
Mich App at 468. Because the trial court’s scoring decision was supported by the record, we
reject defendant’s concurrent argument that his sentence violates the rule of proportionality is
without merit.
Defendant further challenges the validity of his sentence on the basis that the trial court
improperly imposed a sentence that constituted an upward departure from the sentencing
guidelines. We agree.
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In reviewing a lower court’s departure from the sentencing guidelines, an appellate court
must apply three standards: clear error as to the lower court’s determination that a sentencing
factor exists; de novo as to whether a factor is objective and verifiable; and abuse of discretion as
to whether the lower court’s finding that an objective and verifiable factor amounts to a
substantial and compelling basis for departure. Babcock, 469 Mich at 264-265.
Michigan’s sentencing guidelines generally require a sentencing court to impose a
minimum sentence within the appropriate sentence range determined by the points assigned to
the defendant. MCL 769.34(2); People v McCuller, 479 Mich 672, 684-685; 739 NW2d 563
(2007). However, the sentencing guidelines scheme allows for departure from the recommended
range, so long as the lower court can provide substantial and compelling reasons for the
departure on the record. MCL 769.34(3); People v Buehler, 477 Mich 18, 24; 727 NW2d 127
(2007). The substantial and compelling reasons that a lower court relies on to support a
departure must be based on objective and verifiable factors that are capable of being confirmed.
People v Abramski, 257 Mich App 71, 74; 665 NW2d 501 (2003). Even when a lower court
provides substantial and compelling reasons to support a departure from the sentencing
guidelines, the rule of proportionality must still be satisfied. Babcock, 469 Mich at 264. Finally,
the lower court may not rely on factors that have already been accounted for in the sentencing
guidelines to support a departure from the recommended minimum range unless the court finds
that the factors have been given inadequate or disproportionate weight in the guidelines. MCL
769.34(3)(b); People v Castillo, 230 Mich App 442, 448; 584 NW2d 606 (1998).
At the sentencing hearing, the trial court indicated that it based its departure on multiple
factors, which will each be addressed in turn. In articulating its reasons for departure, the trial
court referenced defendant’s lack of remorse. However, lack of remorse is generally a subjective
factor that cannot be used to justify a departure from the sentencing guidelines. See People v
Daniel, 462 Mich 1, 8 n 9; 609 NW2d 557 (2000). The trial court also found that defendant was
unlikely to be successfully rehabilitated. A defendant’s lack of potential for rehabilitation may
constitute a basis for departure only if that determination is supported by objective and verifiable
facts. See Id. at 6; see also People v Horn, 279 Mich App 31, 44-45; 755 NW2d 212 (2008).
Here, because there is no indication the trial court considered specific factors in determining that
defendant was not amenable to rehabilitation, we cannot find that this determination as based on
objective and verifiable facts. Finally, the trial court referenced the fact that the victim was
pregnant at the time of the incident. While we cannot agree with defendant’s contention that this
fact was necessarily accounted for in the guidelines when he was assessed the maximum points
for OV 10 (vulnerability of the victim), MCL 777.40, we nevertheless conclude that this matter
must be remanded for resentencing because two of the factors relied upon by the trial court were
not appropriate to justify a departure on the record presented. See People v Havens, 268 Mich
App 15, 17-18; 706 NW2d 210 (2005) (noting that remand for resentencing is necessary when
the stated reasons for departure are partially invalid and the appellate court cannot ascertain
whether the trial court would have departed to the same extent regardless of the invalid reasons).
Finally, defendant argues that he is entitled to resentencing before a different judge. This
Court applies the following test in determining whether resentencing should occur before a
different judge:
(1) Whether the original judge would reasonably be expected upon remand to
have substantial difficulty in putting out of his or her mind previously-expressed
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views or findings determined to be erroneous or based on evidence that must be
rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness. [People v Hill, 221 Mich App
391, 398; 561 NW2d 862 (1997) (quotations omitted).]
Moreover, actual personal bias or prejudice against a party or party’s attorney is necessary in
order to warrant disqualification of a judge. MCR 2.003(B)(1); Cain v Dep’t of Corrections, 451
Mich 470, 495; 548 NW2d 210 (1996). We find nothing in the record to indicate that the trial
court would have substantial difficulty in setting aside previously expressed views or findings
determined to be erroneous. Therefore, resentencing before a different judge is not warranted.
Affirmed, but remanded for resentencing. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
/s/ Henry William Saad
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